The central legal point established in the judgment is the need to prove that an illiterate person understood the contents of a document and agreed to transfer the property, as well as the prohibition of consideration in a gift.

JUDGMENT :

Surinder Singh, J.

Vide order dated 29.2.2008, the second appeal was admitted on the following substantial questions of law:

1. Whether the learned first appellate Court below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgment and decree?

2. Whether the document exhibit PW1/A gift deed is not a valid document in view of non-delivery of the possession of the disputed property?

2. The facts giving rise to the present appeal, in brief, can be stated thus. The parties to the appeal belong to the same family. Respondent Tilak Raj and the donor of the suit property namely, Tehsildar (now dead) were the real brothers. Said Shri Tehsildar is stated to have executed the gift deed Ext.PW-1/A dated 24.6.1981 in favour of Respondent/plaintiff Tilak Raj qua his shore which was got registered on 10.7.1981. The mutation was got entered on the basis of this gift deed, but the revenue officer rejected the same and attested the mutation in favour of the parties to the suit on the basis of inheritance. Respondent/plaintiff Tilak Raj filed the suit for declaration to the effect that he has been in exclusive possession of share of Tehsildar qua the suit land on the basis of gift-deed and the Appellant/defendants had no right, title or interest in the suit land and the mutation No. 3409 in their favour qua the estate of Tehsildar was wrong, illegal and nonest on his rights. Thus prayed a decree of declaration with consequential relief of injunction.

3. The suit was resisted and contested by the Appellant/defendants. They took up the plea of limitation, estoppel and also questioned the maintainability of the suit vis-a-vis the objection that it was bad for non-joinder of necessary parties, by way of preliminary objections. On merits, they denied the execution of the gift-deed in favour of the Plaintiff and further contended that said Shri Tehsildar was not competent to execute the same and alleged that it was a forged and sham-transaction. It was also contended that Tehsildar was an illiterate and rustic villager. They supported the mutation of inheritance qua the estate of deceased Tehsildar.

4. Defendant No. 6 Sushma Devi was minor. Her Court-Guardian also filed the written statement and took up the same pleas.

5. In replication to the written statements the preliminary objections were denied and even paras of the plaint were reiterated.

6. On the pleadings of the parties, the learned trial Court framed the following issues:

1. Whether the Plaintiff is exclusive owner in possession of the suit land, as alleged? OPP.

1A. Whether gift deed is the result of fraud and sham transaction? OPD.

1B. Whether deceased Tehsildar was incompetent to execute the gift deed? OPD.

1C. Whether gift deed is valid? OPP.

2. Whether the suit is within time? OPP.

3. Whether the suit is not maintainable? OPD.

4. Whether the suit is bad for non-joinder of necessary parties? OPD.

5. Whether the Plaintiff is estopped by his act and conduct from filing the present suit? OPD.

6. Relief.

7. The learned trial Court, after the complete trial returned the findings on issues No. 1B and 3 in affirmative and Ors. in negative, as a result thereof the suit filed by the Plaintiff was dismissed holding that Tehsildar aforesaid was illiterate and ignorant. The contents of gift-deed were never conveyed to him and he did not understand the same. Marginal witness PW-2 Wattan Singh did not support the case of Plaintiff that in his presence Tehsildar got scribed the document and it was read over and explained to him which he admitted to be correct. Wattan Singh aforesaid had stated to have signed the document at the instance of the Plaintiff. He did not obtain personal acknowledgment of the contents of documents from the executant. Further that the Plaintiff in his statement categorically stated that he got the land of Tehsildar in lieu of expenditure to the tune of Rs. 40,000/- to Rs. 50,000/-, i.e.,